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POWER OF THE PRESIDENT TO SUSPEND THE PRIVILEGE OF HABEAS CORPUS. 


SPEECH 


or 

HON. GEORGE H. PENDLETON. OF OHIO, 

1 * 7 7 

IN THE HOUSE OF REPRESENTATIVES, DECEMBER 10, 1861. 


The Judiciary Committee reported back the memorial 
of Charles Howard. William H. Gatchell, and John W. 
Davis, police commissioners of the city of Baltimore, and 
recommended that the committee be discharged from its 
further consideration. 

Mr. PENDLETON. Mr. Speaker, as a mem¬ 
ber of the Judiciary Committee, 1 felt myself 
obliged to examine very carefully the questions 
which arise on that memorial. I have formed a very 
decided opinion as to all of them, and as to the 
proper course to be pursued by this House in re¬ 
gard to them. It is a subject involving the personal 
liberties of the citizen and their constitutional 
guarantees. There is, therefore, since I disagree 
entirely to the report of the committee, no choice 
left to me in the performance of wiiat I understand 
to be my duty as a Representative and as a mem¬ 
ber of that committee, but to make every effort in 
my power to induce the House to give what I 
think is a proper response to a respectful petition. 

I move to recommit this report to the Com¬ 
mittee on the Judiciary with instructions to report 
a resolution which I send to the Chair, and on 
which I shall ask the attention of the House for 
a few moments. 

The resolution was read by the Clerk, as fol- * 
lows: 

Resolved, That the Congress alone lias the power, under 
the Constitution of the United States, to suspend the privi¬ 
lege of the writ of habeas corpus ; that the exercise of that 
power fey any other department of the Government is a 
usurpation, and therefore dangerous to the liberties of the 
people; that it is the duty of the President to deliver Charles 
Howard, William H. Gatchell, and John W. Davis to the 
custody of the marshal of the prooer district, if they are 
charged with any offense against the laws of the United ' 
States, to the end that they may be indicted, and “enjoy 
the right of a speedy and public trial by an impartial jury 
•of the State and district wherein the crime” is alleged to 
have been committed. 

{Having stated in detail the circumstances of 
their arrest, July 1,1861, by United States troops, 
under orders of General Banks, their confine¬ 
ment in Fort McHenry, that the President had 
refused to inform the House of the grounds of 
'the arrest, and on the same day had removed 
them to Fort Lafayette, that a grand jury in the 
circuit court for Maryland had been in session 
and found no indictment, that the process of the 
court had never been resisted, except by order of 
the President, Mr. Pendleton proceeded.] 

The Constitution of the United States provides 
that 

“ The right of the people to be secure in their persons, : 
houses, papers, and effects against unreasonable searches 11 


and seizures shall not be violated; and no warrant shaP 
issue but upon probable cause, supported by oath or affirm¬ 
ation .”—Article 4, Amendments. 

“ No person shall be held to answer for a capital or other¬ 
wise infamous crime unless on a presentment or indictment 
of a grand jury,” * * * * “ nor be deprived of 

life, liberty, or property without due process of law.”— 
Article 5, Amendments. 

“In all criminal prosecutions, the accused shall enjoy 
the right to a speedy and public trial by an impartial jury 
of the State or district wherein the crime shall have been 
committed, which district shall have been previously as¬ 
certained by law, and to be informed of the nature and cause 
of the accusation ; to be confronted with the witnesses 
against him ; to have compulsory process for obtaining wit¬ 
nesses in his favor, and to have the assistance of counsel 
for his defense .”—Jlrticle 6, Amendments. 

These memorialists have been seized without 
“a warrant;” they are held without ‘‘an indict¬ 
ment;” they are deprived of their “ liberty with¬ 
out due process of law;” they are denied “ a 
speedy trial;” they are not informed of the “ na¬ 
ture and cause of the accusation;” they are not 
“ confronted with the witnesses” against them. 
They appeal to Congress to secure to them the 
benefit of these constitutional provisions; they ask 
“ that their case may be investigated by Congress 
or be remitted to the judicial tribunals to be legally 
heard and determined; ”and my worthy colleagues 
on the Judiciary Committee can find no more ap¬ 
propriate answer to their prayer than that it shall 
lie unanswered on your table. 

What do they ask ? Of what do they complain ? 
They ask that they may have “ a speedy trial;” 
that they may be acquitted or condemned. They 
complain that they are arbitrarily held by the mil¬ 
itary power, and denied an opportunity to answer 
any charge which may be brought against them. 
They do not ask an acquittal; they do not sue for 
pardon; they ask no relaxation of the strictness 
of the law. On the contrary, they invoke the 
law; they ask the application of all its rigid rules; 
they invite the closest scrutiny. They have de¬ 
manded thus much at the hands of their captor. 
He has refused it; and now they demand the same 
at the hands of Congress, The writ of habeas 
corpus was invented to meet the exigencies of ex¬ 
actly such a case. It commands the person who 
holds the custody of another to bring him before 
the judge, in order that the cause of his detention 
may be inquired into—that he may be remanded 
to custody, if he be legally held; that he may be 
discharged if he is detained without authority of 
law. The right to invoke its aid is secured to 
every criminal in the land, and has never been 
invaded by the constituted authorities until now. 
These memorialists would have availed themselves 












of it to ascertain the accusation against them, and 
to force a “ speedy trial;” but the President has 
declared that he has authorized the military officer 
ito suspend their right to the writ, and to hold 
them prisoners at his pleasure. 

It is fortunate for these memorialists, in the 
assertion of their personal rights—fortunate for 
the cause of the true interpretation of the Con¬ 
stitution—that there is no charge, no intimation, 
That they have been guilty of any offense known 
to the laws of the land; for, notwithstanding the 
experience of eighty years, we are prone to for¬ 
get that the integrity of the Constitution, the so¬ 
lution of the problem of the compatibility of social 
order with individual security, demand that the 
constitutional guarantees of personal liberty 
should be as faithfully kept, as rigidly enforced, 
as perfectly administered, in the case of the mean¬ 
est criminal as of the purest patriot. 

The President of the United States, in his mes¬ 
sage at the Commencement of the extra session, 
announces his action and his reason for it in the 
following language: 

“ Soon after the first call for militia, it was considered a 
duty to authorize the commanding general in proper cases, 
according to his discretion, to suspend the privilege of the 
writ of habeas corjms, or, in other words, to arrest and de¬ 
tain, without resort to the ordinary processes and forms of 
law, such individuals as he might deem dangerous to the 
public safety. This authority has been purposely exercised 
but very sparingly. Nevertheless, the legality and pro¬ 
priety of what has been done under it are questioned, and 
the attention of the country has been called to the propo¬ 
sition, that one who is sworn 1 to take care that the laws 
be faithfully executed’ should not himself violate them. 
Of course some consideration was given to the question of 
power and propriety, before this matter was acted upon. 
The whole of the laws which were required to be faithfully 
executed, were being resisted and failing of execution in 
nearly one third of the States. Must they be allowed to 
filially fail of execution, even had it been perfectly clear 
that by the use of means necessary to their execution, some 
singlelaw, made in such extreme tenderness of the citizen’s 
liberty, that practically it relieves more of the guilty than 
of the innocent, should, to a very limited extent, be vio¬ 
lated? To state the question more directly, are all the laws 
but one to go unexecuted, and the Government itself go to 
pieces lest that one be violated? Even in such a case, 
would not the official oath be broken if the Government 
should be overthrown, when it was believed that disre¬ 
garding the single law would tend to preserve it? But it 
was not believed that, this question was presented. It was 
not believed that any law was violated. 

“The provision of the Constitution, that the privilege 
of the writ of habeas corpus shall not be suspended unless 
when, in cases of rebellion or invasion, the public safety 
may require it, is equivalents a provision—is a provision— 
that such privilege may be suspended when, in cases of re¬ 
bellion or invasion, the public safety does require it. It was 
decided that we have a case of rebellion, and that the pub 
Lie safety does require the qualified suspension of the priv¬ 
ilege of the writ, which was authorized to be made. Now 
it. is insisted that Congress, and not the Executive, is vested 
with that power. But the Constitution itself is silent as to 
which or who is to exercise the power; and as the provis¬ 
ion was plainly made for a dangerous emergency, it can¬ 
not. be believed the framers of the instrument intended that 
in every case the danger should run its course until Con- 
gresseould be called together; the very assembling of which 
might be prevented, as was intended in this case, by the 
rebellion.” 

In response to a call from this House, on the 
12th day of July, 1861, the President sent copies 
of three different orders, giving authority to sus¬ 
pend the writ of habeas corpus. One is in form a 
proclamation, and relates to the suspension within 
the islands of Key West, the Tortugas, and Santa 
Rosa. 

Two others, dated, respectively, April 27,1861, 
and July 2,1861, are simply “ orders”.addressed 


“ to the Commanding General of the Army of the 
United States,” in these words: 

“ If at any point on or in the vicinity of any military line, 
which is now or which shall be used, between the city of 
New York and the city of Washington, you find resistance, 
which renders it necessary to suspend the writ of habeas 
corpusf or the public safety, you personally, or through the 
officer in command at the point where resistance occurs, 
are authorized to suspend that writ.” 

They seem to have been secret orders, and 
never to have been made public before. 

It is a popular error that the necessary effect of 
a hearing on a writ of habeas corpus is to interfere 
with a legal imprisonment. It is not so. The only 
effect is to ascertain whether the imprisonment is 
legal; to ascertain whether it is by competent au¬ 
thority on a charge of crime. If it is, the prisoner 
is returned to the custody of the officer who held 
him; if it is not, he is discharged. This law, we 
are told by the President, was made in too “ ex¬ 
treme tenderness of the citizen’s liberty,” and was 
therefore suspended. The effect of the suspension 
is to prevent that inquiry into the legality of the 
imprisonment. The object of the suspension is ' 
to enable those who happen to have power, to im¬ 
prison thecitizen who has been guilty of no offense, 
and to subject him to just such rigor of confine¬ 
ment as their discretion, not the law of the land, 
may prescribe. 

The President claims distinctly the authority to 
arrest and detain, without resort to the ordinary 
forms and processes of law, all persons, not in the 
land and naval forces, not prisoners of war, nor 
engaged in military enterprises, whom he or his 
commanding general might “deem dangerous to 
the public safety;” and he claims this authority, 
first, under the Constitution, and, secondly, not¬ 
withstanding the Constitution, “ when it is be¬ 
lieved that disregarding the single law would tend 
to preserve” the Government. 

First. Under the Constitution. —The Presi¬ 
dent admits the authority is not expressly granted 
him by the Constitution; and, if granted him at 
all, it is only by inference, and this derived chiefly 
from the supposed inconvenience of lodging the 
authority in Congress. 

The only clause in the Constitution relating to 
this subject is found in the second clause of the 
ninth section of the first article. It is in these 
words: 

11 The privilege of the writ of habeas corpus shall not be 
suspended, unless, when in cases of rebellion or invasion, 
the public safety may require it.” 

This certainly is a provision, as The President 
well maintains, that, in cases of rebellion or in-» 
vasion, when the public safety shall require it, 
the privilege of the writ may be suspended. Who 
shall exercise this power of suspension? 

The context of the Constitution, the history of 
English jurisprudence, the uniform construction 
of the provision, from the hour of its adoption 
until the order of President Lincoln to his mili¬ 
tary officers on the 27th day of April, 1861, de¬ 
cisively, authoritatively answer this question. 

1. The first article of the Constitution exclu¬ 
sively relates to the organization, the powers, and 
duties of Congress. There is but one single ex¬ 
ception to this statement, and that is found in the 
first clause of the tenth section, where a limita¬ 
tion is imposed upon the powers of the States. 
The first, second, and third sections relate to the 
organization of the two Houses; the fourth sec- 


West* Res. His*. So©. 









tion relates to “ the times, places, and manner of i 
holding elections for Senators and Representa¬ 
tives;” the fifth and sixth sections confer certain 
powers on the separate Houses, and grant privi¬ 
leges and impose disabilities upon the members; 
the seventh section defines the various steps in the 
passage of a bill; the eighth section declares the 
powers of Congress; the ninth section declares 
the powers which Congress shall not have; the 
tenth section, with the single exception alluded 
to, restricts the powers of the States, “ without 
the consent of Congress.” 

The eighth section commences with the words 
“Congress shall have power to,” and defines 
through eighteen clauses the several grants. 

The ninth section, throughout eight clauses, 
limits the powers already granted, or declares 
absolute unqualified restriction upon new subjects, 
and might well have commenced with the words 
“ Congress shall have no power to,” without af¬ 
fecting the sense, or impairing the vigor in any 
degree. 

Congress shall have no power— 

1. To prohibit the migration or importation,&c. 

2. To suspend the privilege of the writ of habeas 
corpus, unless when in cases, &c. 

3. To pass a bill of attainder. 

4. To lay a capitation or other direct tax unless 
in proportion, &c. 

5. To lay a tax or duty on articles exported, &c. 

6. To give any preference by any regulation of 

commerce, &c. ^ 

7. To permit money to be drawn from the pub¬ 
lic Treasury,except in consequence of appropria- 1 
tions. 

8. To grant titles of nobility, &c. 

And yet it is proposed now to wrest this second 
clause from the context, and to contend that the 
limitation applies, not to Congress, but to the 
President, whose name and office and duties are 
in but one other place in the article even alluded to. 

The argument to sustain this proposition is 
obviously fallacious. It assumes the very point 
to be demonstrated. The argument is this: the 
prohibition.to a department of the Government to 
exercise a particular power in all cases except two, 
is equivalent to a grant of the power to that de¬ 
partment in those two cases; if we ascertain the ! 
excepted cases, we know when the power may be 
exercised; if we ascertain the department to which 
the prohibition applies, we know who may exer¬ 
cise the power. The Constitution prohibits the 
suspension of the privilege of habeas corpus except 
in the two cases of rebellion and invasion. In 
those two cases the power of the suspension may 
be exercised—by whom? Obviously by the de¬ 
partment to which the prohibition applies. If we 
ascertain that, we know where the power of sus¬ 
pension resides. The context shows that the 
prohibition applies to the Congress; and therefore 
the power resides in that body. The President 
says no; it would be very inconvenient that it 
should reside in Congress; it would be far more 
convenient that it should reside in the President, 
who may exercise it at any moment, and over 
any district of country. It is fair to presume 
that the framers of the Constitution intended to 
lodge the power where it could be most conveni¬ 
ently and beneficially exercised—-that is, with the 
President; therefore, as the grant and prohibition 
apply to the same department, and as we assume ; 


the grant was intended to be to the President, 
the prohibition must apply to him. 

Rut 1 deny the assumption that the power ought 
to be lodged with the President. I sav it would 
be unwise, dangerous, and in discord with our 
whole system. That the power has been given to 
the President, notwithstanding the many cogent 
reasons to the contrary, is the very point to be 
maintained; and this point the above argument 
assumes. 

The prohibition of the Constitution applies 
either exclusively to Congress, or exclusively to 
the Executive, or generally to all the departments 
of the Government. 

If it applies exclusively to Congress, then the 
power to suspend resides exclusively in that body 
If it applies exclusively to the Executive, then 
the power to suspend resides exclusively in him 
and Congress cannot, in any case, pass any law 
on the subject. If it applies generally to all the 
departments, then, by a parity of reasoning, al 
the departments have the power to suspend tha 
privilege. The judge may refuse the writ on hif 
own motion, before as well as after the order o 
the President, or the passage of a law by Con 
gress; indeed, after the President has refused t( 
order the suspension, or Congress has refused t< 
pass a law authorizing it; and thus the liberty o 
the citizen is subject to the different, it may bi 
discordant, rules adopted by each department o 
the Government, on its idea of what the publi 
safety may require in cases of rebellion or inva 
sion. The context of the Constitution affords i 
simple, uniform, beneficent rule; departure fron 
it involves us in confusion, contradiction, am 
uncertainty. 

2. But if the context of the Constitution left an; 
doubt on this subject, the history of the writ o 
habeas corpus, and its acknowledged condition a 
the time of thendoption of the Constitution, throv 
a flood of light on it. 

From the earliest period of the common law 
the personal liberty of the subject was declare! 
secure from arbitrary and illegal infraction. Th 
barons, in their contest with King John, whil 
they asserted the rights of their order, failed nc 
to enlist the sympathies of the commons, by 
formal declaration of their ancient and acknow 
edged privileges. Magna Charta declares 

“No freeman shall be taken, imprisoned, or dispossesse 
of his free tenement and liberties, or outlawed or banishei 
or anywise hurt or injured, unless by the legal judgment < 
his peers, or by the law of the land.” 

This was the law. It was made effective b 
the writ of habeas corpus, whose office was t 
bring before the civil magistrate the person < 
every prisoner, that the cause, the circumstance: 
and the authority of his imprisonment might I 
inquired into,and that he might be remanded, di. 
charged, or admitted to bail, as “ the law of tl 
land” required. For nearly three centuries tl 
history of England is but the story of weak ( 
wicked kings, of civil wars and internal discon 
in the thread of which we find the theory of th 
Great Charter of the people’s rights forever mail 
tained, and its practical application continuall 
denied. The comparative repose of the natio 
during the next century left men free to obsen 
these violations of their rights. They saw wit 
indignation the tyranny of Elizabeth; they chafi 
under th<? yoke of her arbitrary successor; and j 


















4 


the third year of the first diaries they compelled 
him, as the price of his throne, to assent to the 
Petition of Right— 

“ Whereby he bound himself never again to imprison 
any person except in due course of law, and never again to 
subject his people to the jurisdiction of courts-martial.”— 
Macaulay’s History of England, vol. I, p. 79. 

“ Forced loans, benevolences, taxes without consent of 
Parliament, arbitrary imprisonments, the billeting of sol¬ 
diers, martial law ; these were the grievances complained 
of, and against these an eternal remedy was to be provided. 
The Commons pretended not, as they affirmed, to any un¬ 
usual powers or privileges; they aimed only at securing 
those which had been transmitted to them from their an¬ 
cestors ; and their law they resolved to call a Petition of 
Right, as implying that it contained a corroboration or ex¬ 
planation of the ancient constitution, not any infringement 
if royal prerogative, or acquisition of new liberties.”—3 
Hume’s History of England, cap. 51. 

Charles would not maintain his faith; would 
tot observe this “ explanation of the ancientcon- 
ititution,” and after ten years of struggle and of 
war, lost both his crown and his life as the pen- 
ilty of its infraction. His son, taught something 
iy twelve years of exile, attacked by more secret 
tnd subtle processes this ancient constitutional 
•ight, till every scheme and device by which he 
sought to compass the right of arbitrary impris- 
mmentwere swept away by the great habeas cor- 
ms act of 31 Charles II. 

u James II sought to obtain a repeal of the habeas corpus 
tet, which he hated, as it was natural a tyrant should hate 
he most Stringent curb that ever legislation imposed on 
yranny.”—2 Macaulay’s History of England, p. 3. 

And failing this, he claimed the power to dispense 
vith the operation of all the laws. James lost his | 
hrone; and one of the articles in the Declaration 
>f Right, whereby the succession was assured to 
kVilliam and Mary, solemnly affirmed that— 

“ The dispensing power lately assumed and exercised had 
io legal existence.”—2 Macaulay’s History of England, j 
1 . 6 O 6 . 1 ' [ 

Fromtliatday to this,from that “ Declaration,” 
just one hundred years before the formation of 
>ur own Constitution, in all her foreign wars, 
n all her intestine troubles, under the pressure 
•f whatsoever exigency, no English monarch— 
veak, wayward, and wicked as some of them have 
>een—has ventured to suspend the habeas corpus j 
.ct, or to assert the power to hold in prison a citi- j j 
.enathis own discretion, and by military power, j 
In his History of the English Constitution, Hal- j 
am says: 

“ It cannot be too frequently repeated, that no power of 
rbitr ary detention has ever been known to our constitution 
ince tlie charter obtained at Runnvmede. The writ of 
abeas corpus has always been a matter of right. ”—Chap. 5. j 
“ From the earliest records of the English law, no free- j 
nan could be detained in prison, except upon a criminal | 
barge, or conviction, or for a civil debt. In the former j 
ase, it was always in his power to demand of the court of j j 
ling’s bench a writ of habeas corpus ad subjiciendum , di- ij 
ected to the person detaining him in custody, by which j! 
e was enjoined to bring up the body of the prisoner with 
he warrant of commitment, that the court might judge of 
ts sufficiency, and remand the party or admit him to bail, or j 
ischarge him, according to the nature of the charge.”— ; j 
’hap. 8 . 

The revolution of 1688, in England, effected j 
ather a change of rulers than of constitution— 
ather enforced obedience to the well-established 
aw of the realm, than adopted a new and more lib- 
ral law. Macaulay, in his observations upon the 
iharacter of that event, says: 

“ Without the consent of the representatives of the na- 
ion, no statute could be enacted, no tax imposed, no reg- j 
liar soldiery kept up; that no man could be imprisoned I 
iven for a day by the arbitrary will of the sovereign ; that i 


no tool of power could plead the royal command as a justi¬ 
fication for violating any legal right of the humblest sub¬ 
ject, were held by both whigs and tories to be the funda¬ 
mental laws of the realm. A realm of which these were 
the fundamental laws, stood in no need of a new constitu 
tion.”— History of England, vol. II, p. 611. 

De Lolme, speaking of the suspension of the 
habeas corpus act during the next succeeding years, 
when the Pretender was asserting his rights to the 
throne, says: 

t; But the executive power did not thus, of itself, stretch 
its own authority; the precaution was deliberated upon, 
and taken by the representatives of the people, and the de¬ 
taining of individuals, in consequence of the suspension of 
the act, was limited to a certain fixed time .”—Essay on the 
Constitution of England, Book II, fh. 18, part second,(note.) 

In 1763, Chief Justice Pratt, in overruling a 
motion for a new trial, made by the defendant in 
an action of trespass for arresting the plaintiff, on 
a warrant from Lord Halifax, the Secretary of 
State, said: 

“ If the jury had been confined, by their oath, to consider 
the mere personal injury only, perhaps twenty pounds dam¬ 
ages would have been thought damages sufficient; but the 
small injury done to the plaintiff [a journeyman printer] 
and the inconsiderableness of his station and rank in life, 
did not appear to the jury in that striking light in which the 
great point of law touching the liberty of the subject ap¬ 
peared to them at the trial. They saw a magistrate overall 
the king’s subjects exercising arbitrary power, violating 
magna charta, and attempting to destroy the liberty of the 
kingdom by insisting upon the legality of this general war¬ 
rant before them ; they heard the king’s counsel, and saw 
the solicitor of the treasury endeavoring to support and 
maintain the legality of the warrant in a tyrannical and se¬ 
vere manner : these are the idetfc which struck the jury on 
the trial; and I think they have done right in giving exem¬ 
plary damages. To enter a mail's house by virtue of a 
nameless warrant, in order to procure evidence, is worse 
than the Spanish inquisition—a law under which no Eng¬ 
lishman would wish to live an hour. It was a most daring 
public attack made upon the liberty of the subject.”— Huckle 
vs. Mony, 2 Wilson, 205. 

Sir William Blackstone, in his Commentaries 
on the Laws of England, written in the year 1765, 
twenty-two years before the adoption of the Con¬ 
stitution of the United States, says: 

But the happiness of our constitution is that it is not 
left to the executive power to determine when the dan¬ 
ger of the state is so great as to render this measure expe¬ 
dient. it is the Parliament only, or legislative power, that 
whenever it sees proper can authorize the Crown, by sus¬ 
pending the habeas corpus for a short and limited time, to 
imprison suspected persons without giving any reason for 
so doing.” 

To this point had the law of England been 
brought by the struggles of nearly five centuries. 
Magna charta had affirmed the principle which lay 
deep in the hearts of Englishmen, and to it they 
had adhered with unwavering fidelity. Every act 
of revolution, every outburst of popular passion, 
every restriction put upon prerogative, arose from 
their efforts to compel its observance by the sov¬ 
ereign. They succeeded in 1688; and the swell¬ 
ing tones from the dome of St. Paul’s, which 
announced the election of William and Mary, 
announced also that arbitrary imprisonment had 
forever ceased in the land. The unbroken prac¬ 
tice of a century was thenceforth ingrafted on the 
principle so deeply grounded in the English sys¬ 
tem; so that in 1787—the year of the formation 
of our Constitution—no proposition was more 
incontrovertible than that “Parliament only can 
authorize the Crown to suspend the habeas corpus.” 

The American Revolution was a protest against 
prerogative; it was not an assault upon the con¬ 
stitution; it did not arise from dissatisfaction with 
its principles; it was resistance to its violations— 




















5 


sometimes by Parliament, much more often by 
the king. That Revolution had been successful, 
and its leaders, civil and military, were come to¬ 
gether to forma new Government. Can it be be¬ 
lieved that they, protestants against kingly pre¬ 
rogative—revolutionists because of outrages on 
personal rights by their sovereign—-just emerged 
from a seven years’ war in defense of those rights 
and of indignant defiance of the royal tyranny— 
would clothe the executive of their new Govern¬ 
ment with a power over the citizen which even 
their former master had neverdared to pretend that 
he possessed ? Can it be believed that they, proud 
oftheir English lineage,proud of their English lib¬ 
erty—aye, proud of their loyalty to the principles 
of the English constitution, and fortifying them¬ 
selves at every step of the Revolution by appeals 
to English example and English law—would sac¬ 
rifice that right which their English ancestors 
accounted their chiefest glory ? Those ancestors 
had, for six centuries, battled bravely for popular 
rights. They had placed the crown upon the 
brow of the people; they had decked it with many 
a jewel; it was radiant with the glories of popular 
liberty; and can it be believed that our fathers 
would tear away this priceless gem, which spark¬ 
led in the very forefront of that coronet, and with 
it adorn the scepter of executive power? In no 
other point in the Constitution did they limit the 
rights of the people as admitted at that day; can 
it be believed that they would, in this one vital 
point alone, restrict the bounds of liberty and 
enlarge those of power? 

They speak of the habeas corpus as a thing ex¬ 
isting, a privilege, whose character and extent are 
so ingrafted upon the structure of their society j 
and Government—a right so familiar to the minds 
of men; so interwoven with every theory of pop¬ 
ular rights and executive power; so thoroughly 
understood; so accurately defined that it needs 
neither to be established nor described—a right 
so dearly prized that they will guard it more care- I 
fully than ever it has been guarded before; that 
they will establish as the very corner-stone of the 
new Republic, that whereas heretofore it might be 
suspended at the will of the Legislature, it shall 
hereafter be suspended by the same power only 
“ when in cases of rebellion or invasion the public 
safety may require it.” 

.3. The uniform construction of this clause of 
the Constitution by every department of the Gov¬ 
ernment, is, that the power of suspension resides 
in Congress alone. 

In 1807, when Mr. Jefferson submitted to Con¬ 
gress certain documents relating to the alleged 
conspiracy for a dismemberment of the Union, 
the Senate took the alarm, and, with entire una¬ 
nimity, passed a bill suspending the privilege for 
three months; it was defeated in the House of 
Representatives—rejected on its first reading by 
an overwhelming majority. 

In the same year, in discussing the question 
arising on an application by Bollman & Swart- 
wout, for a writ of habeas corpus, to inquire into 
the circumstances of their confinement after com¬ 
mitment by the district court, to which they had 
been surrendered by Mr. Jefferson, Chief Justice 
Marshall says: 

“If at an.v time the public safety should require the sus¬ 
pension of the powers granted by this act in the courts of 
the United Stales, it would he for the Legislature to say so.” 


I pause to notice a curious criticism upon this 
passage by the Attorney General in his labored 
argument in favor of the power of the President. 
He says: 

“ The court does not speak of suspending the privilege of 
the writ, but of suspending the powers vested in the courts 
by the act.” * * * * “If, by the phrase sus¬ 

pension of the privilege of the writ of habeas corpus we must 
understand a repeal of all the power to issue the writ, then 
I freely admit that none but Congress can do it.” 

The Attorney General thinks that the powers 
of a court are more carefully guarded than the 

E ersonal liberty of the citizen; that the first can 
e suspended only by the joint action of the whole 
legislative body; but that the latter is committed 
to the discretion of the President alone. He thinks 
that a suspension of the privilege of the writ does 
not interfere with the powers vested in the courts. 
What are those powers? To compel the produc¬ 
tion of the body of the prisoner by his custodian 
that he may be remanded, discharged, or bailed, 
and, for this purpose, to use the powers of the 
marshal and his posse. If the President directs 
his subordinate to refuse to produce the body of 
the prisoner, to defy the authority of the marshal, 
to use the Army of the United States to resist his 
posse, does he not interfere with the power vested 
in the courts? 

The privilege of the writ involves the right of 
the party to invoke and to profit by it, and the 
power and duty of the court to issue and hear and 
adjudge and to enforce its judgment. The suspen¬ 
sion of “ the privilege” suspends the right to in¬ 
voke the authority to issue and to hear—the power 
to enforce it; and if this be so, the Attorney Gen¬ 
eral admits that thesuspension can only be effected 
by act of Congress. 

But to return to the construction of this clause 
of the Constitution. Mr. Justice Story, in his 
Commentaries, section 1336, says: 

“It would seem, as the power is given to Congress to 
suspend the writ of habeas corpus in cases of rebellion or 
invasion, that the right to judge whether that exigency had 
arisen, must exclusively belong to that body.” 

j Judge Kent was sitting on the bench of the su¬ 
preme court of New York, in 1813, when the naval 
and military officers of the United States evaded 
the execution of the writ commanding the pro¬ 
duction of the body of Stacey. He ordered an 
attachment to be issued, saying: 

“ Nor can we hesitate in promptly enforcing a due return 
to the writ when we recollect that in this country the law 
knows no superior; and that, in England their courts have 
taught us, by a series of instructive examples, to exact the 
strictest obedience, to whatever extent the persons to whom 
the writ is directed may be clothed with power or exalted 
in rank.” * * * * “If ever a case called 

for the most prompt interposition of the court, to enforce 
obedience to its process, this is one. A military commander 
is here assuming criminal jurisdiction over a private citi¬ 
zen ; is holding him in the closest confinement, and con¬ 
temning the civil authority of the State.”— In re Stacey, 

| 10 Johnson, 328. 

The opinions in Johnson vs. Duncan (3 Martin, 
La. Rep., 531) constitute a noble vindication of 
: the powers and dignity of the law, as against the 
! attacks of the military authorities. They were 
delivered in March, 1815, when Jackson was at 
1 the height of his popularity and power; when the 
successful defense of New Orleans had shown the 
efficiency of the measures which he had adopted. 
Martin, Judge, said: 

“ At the close of the argument on Monday last we thought 
it our duty, lest the smallest delay should countenance the 
idea that this conrt entertain any doubt on the first ground, 



















to instantly declare, viva voce, (although the practice is to 
deliver our opinions in writing,) that the exercise of an au¬ 
thority vested by law in this court, could not be suspended 
by any man.” 

Derbigny, Judge,said: 

“The monarch, who unites in his hands all the powers, 
may delegate to his generals an authority as unbounded as 
his own; but in a Republic, where the Constitution has 
fixed the extent and limits of every branch of Government, 
in time of war as well as of peace, there can exist nothing 
vague, uncertain, or arbitrary in the exercise of any author¬ 
ity. The Constitution of the United States, in which every¬ 
thing necessary to the general and individual security has 
been foreseen, does not provide that in times of public dan¬ 
ger the executive power shall reign to the exclusion of all 
others. It does not trust into the hands of a dictator the 
reins of Government. The framers of that charter were 
too well aware of the hazards to which they would have 
exposed the fate of the Republic by such a provision; and 
had they done it, the States would have rejected a Consti¬ 
tution stained with a clause so threatening to their liber¬ 
ties. In the mean time, conscious of the necessity of re¬ 
moving all impediments to the exercise of the executive 
power in cases of invasion or rebellion, they have permit¬ 
ted Congress to suspend the privilege of the writ of habeas 
corpus in those circumstances, if the publie safety should 
require it. Thus far and no further goes the Constitution.” 

And after an examination of the powers of the 
British Government, he exclaims: 

“And can it be asserted that, whilst British subjects are 
thus secured against oppression in the worst of times, Ameri¬ 
can citizens are left at the mercy of the will of an individual, 
who may, in certain cases— the necessity of which is to be 
judged of by himself— assume a supreme, overbearing, un¬ 
bounded power? The idea is. not only repugnant to the 
principles of any free Government, but subversive of the 
very foundations of our own.” 

And to the testimony of judges and jurists, may 
be added that of writers on military law: 

“ The Constitution guaranties the privilege of the writ of 
habeas corpus, which it declares shall not be suspended 
‘unless when, in cases of rebellion or invasion the public 
safety may require it;’ and the intervention of Congress is 
necessary before such suspension can be made lawful.”—De 
Hart on Military Law. 

The gentleman to my right says that Wash¬ 
ington and Jefferson both suspended the writ. He 
is entirely mistaken. General Washington, in his 
instructions to the officers and troops who were 
to take part in suppressing the whisky insurrec¬ 
tion, says: 

“That every officer and soldier will constantly bear in 
mind that he comes to support the laws, and that it would 
be peculiarly unbecoming in him to be, in any way, the in¬ 
fractor of them; that the essential principles of free gov¬ 
ernment confine the province of the military, when called 
forth on such occasions, to two objects: first, to combat 
and subdue all who may be found in arms in opposition to 
the national will and authority; secondly, to aid and sup¬ 
port the civil magistrates in bringing offenders to justice. 
The dispensation of this justice belongs to the civil magis¬ 
trates; and let it ever be-our pride arid our glory to leave the 
sacred deposit there inviolate.”— Irving’s Life of Washing - 
ton, vol. 5, ch. 25. 

Mr. Jefferson, in 1787, objected to the Consti¬ 
tution that it omitted to provide “ for the eternal 
and unremitting force of the habeas corpus laws.” 
In 1788 he advised that four States should refuse 
to ratify the Constitution until a declaration of 
rights had been annexed to it, asserting, among 
other things, that there should be “ no suspen¬ 
sion of the habeas corpus and in 1807, at the 
period of Burr’s conspiracy—to which I have be¬ 
fore alluded—he neither assumed to exercise the 
power himself, nor did he ask or advise Congress 
to do so. On the contrary, in his message to 
Congress, he said: 

“ ft will be seen that of three of the principal emissaries 
of Mr. Burr, whom the general had caused to be appre¬ 
hended, one had been liberated by habeas corpus, and the 
two others, being those particularly employed in the en¬ 


deavor to corrupt the general and Army of the United 
States, have been embarked by him for our ports in the 
Atlantic States; probably on the consideration that an im¬ 
partial trial could not be expected during the present agita¬ 
tions of New Orleans, and that that city was not, as yet, a 
safe place of confinement. As soon as these persons shall 
arrive, they will be delivered to the custody of the law, and 
left to such course of trial, both as to place and process, as 
its functionaries may direct.” 

And when the Senate bill, suspending the habeas 
corpus for three months, came to the House, Mr. 
Eppes, Jefferson’s son-in-law, moved its rejec¬ 
tion; and his friends and supporters—all, I be¬ 
lieve, except two—voted for the motion. The 
motion prevailed, only nineteen votes being in the 
negative. 

These are the instructions which the context of 
the Constitution, its uniform interpretation, and 
the history of English liberty afford. They an¬ 
swer the question, who shall suspend the privi¬ 
lege of habeas corpus ? And yet, with this answer 
full before him, the President says: 

“The Constitution itself is silent as to which, or who, is 
to exercise the power; and as the provision was plainly 
made for a dangerous emergency, it cannot be believed the 
framers of the instrument intended that, in every case, the 
danger should run its course until Congress could be called 
together.” 

It is taught us by every page of the world’s 
history that the possession of power has blinded 
the eyes of man, and destroyed his judgment. 

Secondly. Notwithstanding the Constitu¬ 
tion. The President has little confidence in this 
claim of power under the Constitution, for he pre¬ 
faces the statement of the claim with argument to 
show that it was his right and his duty to suspend 
the privilege of habeas corpus , even though such 
suspension were prohibited to him by the Consti¬ 
tution. The President says: 

“ The whole of the laws which were required to be faith¬ 
fully executed were being resisted and failing of execution 
in nearly one third of the States. Must they be allowed 
finally to fail of execution, even had it been perfectly clear 
that by the use of the means necessary to their execution, 
some single law, made in such extreme tenderness of the 
citizen’s liberty, that practically it relieves more of the 
guilty than the innocent, should to a very limited extent 
be violated? To state the question more directly, are all 
the laws but one to go unexecuted, and the Government 
itself go to pieces, lest that one be violated? Even in such 
a case would not the official oath be broken, if the Govern¬ 
ment should be overthrown, when it was believed that dis¬ 
regarding the single law would tend to preserve it?” 

Attorney General Bates, in theargumentalready 
referred to, says of the President: 

“ The end—the suppression of the insurrection—is re¬ 
quired of him. The means and instruments to suppress 
it are lawfully in his hands ; but the manner in which he 
shall use them is not prescribed, and could notbe prescribed 
without a foreknowledge of all the future changes and con¬ 
tingencies of the insurrection. He is, therefore, necessa¬ 
rily thrown upon his discretion as to the manner in which 
he will use his means to meet the varying exigencies as 
they arise.” • 

The Secretary of State, in his official dispatch 
to Lord Lyons, dated October 14, 1861, after an¬ 
nouncing the absolute right on the part of the 
President to suspend the writ of habeas corpus , 

“ whenever and wherever, and in whatsoever ex¬ 
tent the public safety, endangered by treason or 
invasion in arms, in his judgment requires,” says: 

“ The safety of the whole people has become, in the pres¬ 
ent emergency, the supreme law; and so long as the danger 
shall exist, all classes of society, equally the denizen and 
the citizen, cheerfully acquiesce in the measures which 
that law prescribes.” 

And partisan friends, approving the act of the 















President, and seeking to justify it by argument, 
say “ that in times of war and civil strife the Con¬ 
stitution is suspended’, when danger threatens the 
Government, it must be protected by all necessary 
means; that treason must be crushed outat what¬ 
ever cost or by whatever measures.” 

These are only different statements of the same 
proposition. They all involve the idea that when¬ 
ever in times of civil commotion the President 
may think the Government is in jeopardy, his 
discretion, not the Constitution,is the measure of 
his power in defending it. 

If the President may suspend the privilege of 
habeas corpus because he deems such suspension 
necessary, so also may he, under like circum¬ 
stances, suspend the right to a “ speedy trial,” or 
to exemption from “excessive bail,” or the right 
to a “trial by jury,” or that it shall be within the 
proper district, or the provision that no man shall 
be deprived of “ his life without due process of 
law.” If the President may, at his will, imprison 
a man without law, because he believes such im- 
risonment necessary to the public safety, may 
e not, without law, under a like pressure, put 
him to death? If he may suspend one of these 
constitutional provisions, he may suspend two, 
he may suspend all. 

If, under the plea of necessity, the President 
may suspend those clauses of the Constitution 
which assure to thecitizen his personal rights, so 
also may he suspend those clauses which ex¬ 
pressly limit his own power; lie may prolong, 
indefinitely, his own term of office, on the pretense 
that the imperiled condition of the country forbids 
the excitement of an election or a change of ex¬ 
ecutive officers, or that he should submit to im¬ 
peachment. He may suspend the provision that 
“ for any speech made in either House members 
shall not be questioned in any other place;” or 
that Representatives shall be elected every two 
years; or that all legislative powers shall be vested 
in Congress. If he may suspend any clause of 
the Constitution, or any right secured by it, a 
fortiori may he suspend the laws of Congress, and 
the rights and remedies prescribed, the powers 
granted, or the duties enjoined by them. 

And thus, according to this new theory, the 
President may supersede entirely the Constitu¬ 
tion and the laws; set aside every guarantee of 
liberty; disregard every limitation upon his own 
power; abolish all the civil institutions ofthe land, 
and substitute for them his own undisputed will; 
he may displace the government, which he has 
sworn to preserve, and which we have been ac¬ 
customed to believe, and to boast, is the best ever 
framed, and inaugurate in its room the earliest 
and worst form of government—the despotic com¬ 
mand of a military chief; he may, with a word, 
abrogate the entire system which we have built 
upon the foundations laid by our fathers, and with 
another word build up a new and a different sys¬ 
tem; and all this rightfully, legitimately, without 
usurpation. 

The position is utterably untenable. It has no 
warrant in the Constitution, nor in the principles 
which underlie our system of government, nor in 
the genius of our people, nor in the spirit of lib¬ 
erty. It is inconsistent with them all. Its delib¬ 
erate adoption by the people would destroy them 
all. It is the offspring of cowardice, and would 
become the fruitful parent of tyranny and dis¬ 


order. It would reduce any nation to the posi¬ 
tion of slaves; indeed,any nation, willing toadopt 
it as a theory of government, is so lost to every 
manly aspiration for freedom; so lost to a true 
appreciation of its dignity and rights; so wanting 
in courage and constancy to maintain them, that 
it is slavish already; so weak and degraded that 
the yoke is but the outward token and fitting em¬ 
blem of its true condition. We are told in defense 
of this new theory, that the power is never to be 
exercised, indeed does not exist, except when the 
rebellion is threatening the very existence of the 
Government. I reply in the language of the 
President, in his argument upon the question of 
secession: 

“The little disguise that the supposed right is to be ex¬ 
ercised only for just cause, themselves to be the sole judge 
of its justice, is too thin to merit any notice .”—Message to 
Congress, July 4, 1861. 

We are told that the Constitution was not in¬ 
tended for times of civil war. Doubtless our 
fathers hoped that calamity would never befall 
our land; but they knew human nature too well to 
expect, forever, profound repose. They them¬ 
selves had just emerged from a civil war marked 
by more than the usual trials of a revolutionary 
government; they had contended with theenemy 
from abroad, and with the tories in their own 
midst,and with the remembrance fresh upon them, 
they framed this Constitution and Government. 
It is an impeachment of their honesty or their 
good sense to say that their work was designed to 
be operative during the quiet days of prosperous 
peace, and to be superseded whenever strife and 
commotion should afford both opportunity and 
temptation to a usurper. They intended that the 
Constitution should prevail at all times, in war as 
well as in peace. They intended by it to define the 
bounds of power, and forever to restrain it within 
those bounds. It has done so. It has vested the 
Government, in some of its departments, with all 
the power which it was intended ever should be 
used. Some power was not to be used; for our 
fathers thought—their sons should never forget it 
—that the liberties of the people, the rights of the 
citizen, were to be preferred to any form of gov¬ 
ernment, even their own handiwork; that when 
they came into collision the Government must go 
down; that it would be better to risk the destruc¬ 
tion of the Government, than to imperil those in¬ 
terests, whose security is the only object for which 
all good governments are created. 

If the laws are too mild, let them be made more 
stringent; if crimes have not been defined, let them 
be denounced, and punishment assigned them; if 
officers are corrupt, let them be removed; if judges 
are imbecile or dishonest, let them be impeached; 
let the machinery of the Government all be used, 
and power enough will be found. Whoever would 
go beyond this, would subvert the Government 
under pretense of upholding it; would destroy the 
Constitution under pretense of preserving it. The 
Constitution is the warrant of the Government, 
gives it power and substance, breathes into it the 
very breath of life. The Government has no 
power, no being, except that given it by the Con¬ 
stitution. The President holds his office, the 
Congress exercises its functions, the courts sit and 
give judgment by virtue of its provisions alone. 
If the Constitution is suspended, the Government 
falls. These officers have not—no, not for an in- 












8 


stant—more power than the humblest and every 
citizen. To suspend the Constitution in order to 
preserve the Government, would be to stop the 
current of blood in the veins in order to improve 
the health; to take out the heart in order to pre¬ 
serve the life. To preserve the Government the 
Constitution must be preserved; its principles must 
be cherished; its limitations must be respected; 
its prohibitions must be obeyed. When these 
are powerless for its preservation, our fathers in¬ 
tended that it should fall; for they ordained and 
established the Constitution “ to secure the bless¬ 
ings of liberty to themselves and their posterity,” 
and invented the Government only as a machine 
to administer it. If it shall ever fail to do this, 
and if its existence shall ever become incompati¬ 
ble with the existence of the Constitution, it will 
have failed in its office, and ought to give place 
to a more efficient organization. 

Every instinct of patriotism, every hope of 
safety, every aspiration for national life, (which is 
with us but the emblem of national liberty,) should 
prompt, nay, should command, in thunder tones, 
this people to rebuke every attempt at usurpation. 
“Let there be no change by usurpation,” said 
Washington, in his farewell address; “for though 
this, in one instance, may be the instrument of 
good, it is the customary weapon by which free 
governments are destroyed.” 

It is attempted now, in times of great excite¬ 
ment, in a moment of great public calamity. If 
it is permitted now, it will be repeated; precedent 
will give authority; the tone of the public mind 
will be gradually degraded; its sensibility to in¬ 
fractions of public liberty will be deadened. The 
people will yield again and still again, till the 
public sentiment debauched, the public virtue de¬ 
stroyed, the national character tarnished, the na¬ 
tional love of liberty diminished, they will become 
an easy prey to the tyrant. Each successful ag¬ 
gression upon a people’s rights, degrades its appre¬ 
ciation of their value, and with the loss of it, the 
nation loses both the desire and the power to main¬ 
tain them. 

These are not vain fears. Already they begin 
to be realized. When, six months ago, the writ 
of habeas corpus was suspended in the case of John 
Merriman, who was held on a charge of treason, 
till the grand jury could take action, the liveliest 
interest was felt throughout the country. Now, 
if public rumor is not greatly at fault, citizens 
have been committed to prison whose only fault 
is, that they have spoken on the hustings or pub¬ 
lished in a newspaper criticisms on his policy dis¬ 
tasteful to the President or his Cabinet; newspa¬ 
pers have been suppressed; their transmission 
through the mails refused; their circulation by 
express companies prevented; freedom of speech 
and of the press has been abridged; and in the 
department of Ohio a second arrest by the mili¬ 
tary has been made after the prisoner had been 
held to bail to answer the charge; and these things 
scarcely command a passing notice from the mass 
of the people. 

It is vain to say that when the public danger 
shall have paSsed away these usurpations will 
cease, the Constitution will be restored to its vigor, 
and the people resume in peace their accustomed 
liberties. When was it ever so? When was power 
ever shorn of its acquisitions, save by the sword ? 
When were liberties, once surrendered, ever re¬ 


conquered except in blood ? For the great crime 
against its own liberties, no nation has ever made 
expiation but in the agonies of revolution; with¬ 
out the shedding of blood there is no remission of 
this sin. You cannot make a nation jealous of its 
rights by teaching it that, in times of great public 
danger, the citizen has no rights. You cannot 
increase its manhood or its constancy, or make 
it sensitive to dishonor, by teaching that in times 
of danger it must rely not on its own virtue and 
courage, but on the power and good will of its 
rulers. 

No free people should ever listen to this argu¬ 
ment of State necessity. Its history is marked by 
the wreck of popular liberty and free institutions, 
by the sad tokens of human hopes destroyed, and 
noble aspirations blighted. As we look back 
upon its pathway of desolation, and trace it even 
to our own times and country, we may easily 
imagine that the very spirit of American liberty 
this day hovers over us and tearfully prays that 
it may not be added to the list of victims. This 
argument is always used by the possessors of 
power; it is a voice which issues always from 
the throne, and if not instantly silenced, it is an¬ 
swered, ere long, in the wail of the nation, as it 
surrenders its liberties in submission to arbitrary 
power. We have seen its effect in our day. An 
imperial throne built upon the ruins of a republic 
and a presidency; built upon the ruins of oaths 
broken, rights violated, liberties despised, and a 
nation oppressed, is but the familiar story with 
which we close one page of the history of “ State 
necessity.” 

We are told that in times of great public dan¬ 
ger the people should strengthen the hands of 
their rulers by confidence in the integrity of their 
motives, and in the wisdom of their measures. 
Yes, truly! Strengthen them with the confidence 
of the people so long as they confine themselves 
to the powers granted by the Constitution, but 
paralyze them with distrust when they begin the 
work of usurpation. Demosthenes, in his “ divine 
philippic,” told the Athenians that “ the strongest 
fortress of a free people against a tyrant is dis¬ 
trust.” They heeded not his warning, and thence¬ 
forth Grecian independence and Grecian liberties 
were but a name. William the Silent taught the 
same lesson to the northern Netherlands when 
Philip sought their confidence. They heeded its 
wisdom, and glories clustered for two hundred 
years around the Dutch republic. 

I do not speak to-day in behalf of these memo¬ 
rialists alone—honorable, upright as I believe them 
to be—deprived of their constitutional rights as 
I think they certainly are. I speak in behalf of 
the Constitution, in behalf of the liberties of the 
nation, of the rights of my constituents, of the 
rights of every citizen in the land; and in behalf 
of them all, I now say that this claim of the ex¬ 
ecutive department of the right to suspend the, 
privilege of the habeas corpus , to seize and de¬ 
tain the citizen without regard to the provisions 
and processes of law, is utterly untenable; and 
that it becomes this House—every member of it; 
the chosen Representatives of the people—as well 
in virtue of the oath we have taken to support the 
Constitution as of the position which we hold in 
the framework of the Government, solemnly— 
aye, solemnly—before God and our countrymen, 
to protest against it.. 




































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